In re K.P.
Filed 9/19/13 In re K.P. CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re K.P. et al., Persons Coming
Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
M.P. et al.,
Defendants and Appellants.
D063252
(Super. Ct.
Nos. NJ14711A/C/E/F)
APPEAL from orders of the Superior
Court of
County, Blaine K. Bowman, Judge. Affirmed.
Neil R. Trop, under appointment by
the Court of Appeal, for Defendant and Appellant M.P.
Valerie N. Lankford, under appointment
by the Court of Appeal, for Defendant and Appellant A.P.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief
Deputy County Counsel and Erica C. Cortez, Deputy County Counsel, for Plaintiff
and Respondent.
Kathleen Murphy Mallinger, under
appointment by the Court of Appeal, for Minors.
Defendants and appellants M.P.
(mother) and A.P., Sr., (father) each contend the evidence was insufficient to
support the jurisdictional finding of the juvenile court that their minor son,
Jo., was at substantial risk of being sexually abused as provided in Welfare
and Institutions Code
name="_ftnref1" title="">[1]
section 300, subdivision (j) based on the undisputed finding that father
repeatedly, over the course of years, sexually molested Jo.'s older sister,
K.
Father separately contends there was
allegation in Jo.'s section 300 petition that father "dabbled in child
pornography." Finally, mother alone
contends the record is devoid of clear and convincing evidence to support the
removal of K., T., C. and Jo. from her custody under section 361, subdivision
(c)(4).
As we explain, we conclude there is
support the true finding under section 300, subdivision (j) that Jo. was at
substantial risk of being sexually abused.
We also conclude there is sufficient evidence in the record to support
the finding that father "dabbled in child pornography." Finally, we conclude there is clear and
convincing evidence in the record to support the findings and order based
thereon removing K., T., C. and Jo. from mother's custody under section 361,
subdivision (c)(4).
OVERVIEW
A.
Background
Mother and father have 11 children, four of whom are the subject of
this appeal. In September 2012,
plaintiff and respondent San Diego County
Health and Human Services Agency (agency) filed a petition under section
300, subdivision (d) on behalf of 17-year-old K. alleging that over a
seven-year period father sexually abused his daughter by digitally penetrating
her vagina repeatedly and by forcing her to touch his penis. The petition further alleged K. reported the
sexual abuse to mother; mother admitted father had viewed
protect K. from father's sexual abuse.
The agency also filed petitions on behalf of 15-year-old A., Jr.,
13-year-old T., 10-year-old J., 8-year-old C., 6-year-old Jo., 4-year-old E.
and 2-year-old Av. alleging they too were at risk of being sexually abused in
light of mother's failure to protect.
The agency's September 2012 detention report stated mother contacted
the child abuse hotline in mid-August 2012 and reported that K. had disclosed
she had been sexually assaulted by father over a seven-year period and as
recently as February 2012. K. stated
father would spit on his finger for lubrication and then insert his finger into
her vagina, moving it in and out of her.
K. stated the sexual abuse by father began when she was about five or
six years old and lasted until she was about 12. Father told K. he was merely "'tickling'"
her when he engaged in the sexual abuse, and she was to keep it a secret.
K. said she was sexually abused by father in her parents' bedroom in
the middle of the night after she would awaken and climb into their bed for
comfort and affection. Father would put
her under the blanket and insert his finger into her vagina after he spit on
it. She described this abuse as
happening "'often.'"
K. said the sexual abuse also occurred in the bedroom she shared with
her sister T. Father would enter the
bedroom, take off K.'s pants, spit on his finger and penetrate K.'s vagina as
she lay in the top bunk of the bunk bed she shared with T. Father told T. he was "'tickling'"
K. T. told father she also wanted to be
"tickled," but father only touched K.
K. reported this abuse by father would go on "'for a few
hours'" and she "'was not laughing.'"
K. said the sexual abuse by her father occurred about twice a
week. The majority of the sexual abuse
occurred in the family's three-bedroom home, including on a few occasions in
the garage where father had his office.
K. said her vagina felt "'weird,'" "'painful'" and
"'slimy'" from father's saliva after the molestation.
K. recalled one instance of sexual abuse by father that occurred as
father was driving K. and her siblings home from Los Angeles. K. rode in the front seat of father's car while
her siblings slept in the back seat. At
some point, father pulled over, retrieved a jacket or sweater from the trunk of
the car, undressed K. and put the jacket or sweater over her. Father then put his finger in K.'s
vagina. K. reported the "'whole
ride home'" she had to "'deal with'" father touching her vagina.
When they got home, father put K.'s siblings to bed and then took her
to his own bed. Father then
"'reached [K.'s] hand over to feel his penis,'" but she moved her
hand away. He then "'put his penis
really close to [K.'s] vagina and [she] moved away fast after that.'"
At the age of 12, K. was diagnosed with ovarian cysts. As a result, K. experienced some stomach
pain. K. recalled being in the car with
father when he drew a picture of a vagina and some nerves to show K. how his
tickling her vagina caused endorphins to be released and made her feel
better.
K. finally told father she did not want him touching her vagina
anymore. K. told father, "'Dad I
don't want you to do this anymore, you have a wife and you can [do] that to
her, this is really hurting me.'"
K. also told father his touching "'was very wrong.'" According to K., father became sad and
repeatedly said, "'but you're my tickle buddy.'" K. felt guilty after she told father to stop
touching her vagina.
In February 2012, K. reported she became ill after a root canal. As K. was resting, father came into the room
and lay behind her in what K. described to law enforcement as a
"'weird'" position. As father
began to move "'a little behind'" K., mother and T. walked in
unexpectedly. Mother told father to get
up and said to father, "'that's a very awkward position.'" K. did not tell mother then about father's
past sexual abuse, but K. did pray mother would "'catch'" father
sexually abusing her.
K. finally disclosed the sexual abuse by father in mid-August 2012
after she and T. argued. At the time,
the family was living in tents and a trailer.
After T. and K. argued, T. told mother she was jealous of K. K. in return said she was tired of hearing
about her siblings' jealousy. K. said,
"'People think that me and [d]ad have such a good relationship [and] that
nothing bad ever happens to me and him.'"
She then said, "'The truth is he hurt me physically and
emotionally.'"
Mother asked T. to leave the room and, for the first time, K.
disclosed the sexual abuse by father.
Mother cried. She then packed up
their belongings, left the campsite and contacted the police.
Mother told the responding officer from the San Diego County Sheriff's
Department that she had confronted father with K.'s disclosure and that he
calmly denied the allegations. Mother
also reported that father had written and self-published a book about
"teen porn and jail time," which focused on the consequences of viewing
child pornography. Mother told the
officer about an incident when mother saw father looking at "porn" on
his computer. According to mother,
father denied he was looking at pornography and claimed it was an
"internet pop-up."
Mother spoke in person to agency social worker Julie Weathersby on
August 16, 2012. Mother said that K.'s
disclosure caused mother to go "into complete shock."
Mother told Weathersby a similar account of what she had told the
responding officer a few days earlier, including that father denied sexually
abusing K.; that he claimed he had only "tickl[ed] [K.] when she was
little" because K. asked to be tickled; and that father had written and
self-published a book as part of his studies concerning the law and child
pornography. Mother also told the social
worker she had read a section of a story/book father was writing on his
computer that included nude scenes, which mother believed had been written by
father with K. in mind.
During the interview, mother told Weathersby that father (as discussed
post) had "dabbled in child pornography," as mother admitted
seeing "'terrible porn'" on his computer and stated father
"could have accidently looked at underage girls." Mother also said she believed K. when K. said
father had sexually abused her, as K. was not the type of person to make up
such allegations. In addition, mother
indicated that father used the "'same language'" (i.e., tickling) K.
had used when K. reported father had sexually abused her, which mother believed
corroborated K.'s accounts of abuse.
Mother told Weathersby she was concerned her husband was attracted to
C., their eight-year-old daughter.
Mother based this opinion on father's lack of discipline of C.; his
taking C. to a hot tub almost nightly; and the smile on his face when he was
with C., which mother said "'he gets when he's appealed to
someone.'"
In the agency's September 2012 detention report, Weathersby noted she
received several telephone calls from father the day after she met with
mother. Father told Weathersby that he
was "shocked" by the allegations he sexually abused K.; that the
allegations came "'out of the blue'"; and that he was being
"'framed for the whole thing.'"
Father told Weathersby he believed K. was diagnosed with ovarian cysts
when she was five or six years old and, as a result, she would come into their
bedroom in the middle of the night, get into their bed and he would then put
his hand on her ""tummy and administer[] love and prayed with
fatherly love.'" Father then
spontaneously told Weathersby, "'I have no recollection of
rape.'"
Shortly after the first call ended, father again called Weathersby and
reported after "'wracking [his] mind'" that he and his wife, along
with their 11 children, had lived in a three-bedroom house and "'anything
could've happened.'" He informed
Weathersby that "'on a couple of occasions during a period of time'"
he helped K. when she was a child with "gas pains." Father admitted it "'sound[ed]
terrible'" but, on those occasions, he would "'stand next to
[K.]'" and would "'tickl[e] her abdominal area'" until she fell
asleep."
Father also reported that, in April 2012, mother left him after she
read a new story he had been writing about a man jailed for robbery who, on
release, went into a forest in South Dakota to find money he had hidden. According to father, the man in the story
came upon a "'girl'" in a tent, and the man pondered what he should
do with the girl because the man had not "been with a woman in a long
time." Father denied the book was
about sex but noted the girl in the novel was vulnerable as she was getting
dressed in the tent. Father told
Weathersby that mother had become upset by the story because they too had
teenage daughters who were dressing and undressing in a tent, as the family was
then living in tents at a campsite, and because mother believed he might be
thinking of doing the same thing with his daughters as the man in the book was
considering with the girl. Father told
Weathersby that mother and the children returned to the campsite a few days
later as if "nothing had happened."
In the third call from father, he asked Weathersby to question K.
about "'any situation of a sexual nature'" and whether K. has had any
"'other sexual contact,'" including intercourse. Father reported an incident involving his
older daughter S., that he had learned about after the fact, when S. had
"undressed [K.] and [A., Jr.] and [had] allowed them to watch television
in the nude."
title="">[2]
T. also was interviewed about father's sexual abuse. T. recalled when she and her mother entered
the room (i.e., in February 2012) and saw father near K. Father told them he was "'massaging
[K.'s] stomach.'" T. recalled telling
father, "'[I]f I were her [i.e., K.] I wouldn't be comfortable with that
and my sister [i.e., K.] agreed that she was not comfortable with
that.'"
T. reported when they were "'little'" father used to
"'tickle'" her even though she "'wasn't ticklish'" and even
after T. asked father to stop. T. said
father did not tickle her "'in the wrong way.'" T. recalled that when she and K. slept in a
bunk bed, she heard K. "'telling him [i.e., father] to stop'"; that
"'[t]his wasn't once she told him lots of times she didn't want him to tickle
her'"; and that father "would be standing up by the bunk bed while he
was tickling [K.]" and K. told him to "'stop.'"
T. reported father had given K. and one of her other sisters a
"'promise ring'" that T. said signified they would be
"'pure,'" but father would not give one to T. because T. would not
"'even let him tickle [her].'"
According to T., father would give her a ring too if she let him tickle
her.
The record shows Weathersby interviewed A., Jr., in late August
2012. A., Jr., told Weathersby he knew
little about the allegations of sexual abuse against father other than what he
had heard father tell Weathersby over the telephone. A., Jr., did say father told him that father
had massaged K.'s "tummy" to help her with "tummy pain."
A., Jr., reported that he and K. had "sex" "'a long
time ago'" in the garage while their sister S. was present. A., Jr., could not recall how old he was at
the time of this encounter. When pressed
for details, A., Jr., said that he recalled being naked and on top of K., who
also was naked; that S. told him and K. "'it's fine or something like
that'"; and that he was not sure whether his penis had been inside of K.'s
vagina.
The record shows the agency did not remove the children from mother
after the allegations of sexual abuse against father surfaced. Instead, Weathersby and law enforcement
assisted mother in obtaining referrals for counseling and other services and in
developing a safety plan that provided there would be no in-person contact
between father and the children.
However, after spending about two weeks apart, mother allowed father
to return living with the family.
Weathersby received a telephone call from S., the adult sibling of K.,
who reported mother, father and the children were "'all living together
like a happy family'" after mother "had a change of heart" when
father "'confessed privately'" during a meeting with a pastor of a
church. S. further reported mother
believed father was "broken and very sorry." S. told Weathersby that mother, father and
the children sought to reside with mother's brother in early September 2012 but
left the brother's residence after being told father could not stay.
Weathersby in early September 2012 also spoke to a family friend who
owned the house where mother and the children had been living once the agency
put in place the visitation restrictions.
This person reported she told mother to leave because mother returned to
the relationship with father; gave father access to the children, including to
K.; and wanted father to live in the house with her and the children.
A few days later during a telephone conversation, mother admitted to
Weathersby that she and father had reconciled, claiming that father had
"'seduced'" her; that the children had ongoing in-person contact with
father; and that father had returned to living with the family. Mother also admitted that she was aware of
the directive put in place by the agency and law enforcement that father was to
have no contact with the children and that she had disregarded that directive.
On or about September 7, 2012, the children were removed from their
parents. That same day, father was
arrested and charged under Penal Code section 288, subdivision (a) with 10
counts of lewd and lascivious acts on a child under the age of 14 years. At the September 10, 2012 detention hearing,
the court found all eight children were subject to its jurisdiction under the
section 300 petitions and ordered the children be detained at Polinsky
Children's Center or with a licensed foster care provider. The court also ordered supervised visitation
for mother and issued a no-contact order between father and the children.
In the mid-October 2012 jurisdiction/detention report, agency social
worker Shari Medeiros reported that in an interview requested by T. after the
detention hearing, T. told Weathersby that father had touched her in a sexual
manner. T. stated that when she was 12
years old, father put his hand down her pants while she was sleeping. T. said the family had been camping when the
incident occurred, and she was not fully conscious when it happened but was
certain it had occurred because her pants were unbuttoned when she
awakened. T. told Weathersby she
"'never looked at him [i.e., father] the same again.'" During this same interview, T. reported that
in early 2012 father attempted to squeeze her thigh and that she continuously
slapped his hand away. She also reported
an incident when she was four years old when father put his hand on her stomach
in a way that made T. uncomfortable.
A few days after the interview with Weathersby, as reported by
Medeiros, T. said during a forensic interview that father "might"
have unzipped her pants as she slept near her brother Jo. but denied any
conscious knowledge of being sexually abused by father.
Medeiros conducted an in-person interview with father in late
September 2012 in connection with the preparation of the agency's
jurisdiction/disposition report. Father
denied ever touching K.'s vagina, except perhaps when she was an infant and he
was changing her diapers. Father stated
both he and K. have gastrointestinal problems and, when she was younger, he
would "'tickle[] her tummy'" to "'administer comfort'"
because he has "'warm hands.'"
Father told Medeiros he believed K. made up the sexual abuse story
because she was angry with him for making her stop music lessons. Father theorized that perhaps he had
"done something in his sleep" to K. because it was "his job to
put the children to bed and sometimes he [was] so tired[] he [would] fall
asleep in the children's beds." In
response to Medeiros's point that K. was very deliberate in her description of
father wetting his finger before he used it to penetrate her vagina, father
further theorized that perhaps K. had seen him wet his finger before engaging
in sexual activities with mother. Father
then demonstrated for Medeiros, in what she described as a "vulgar
gesture," how he wet his finger before engaging in sexual activity with
mother, who he claimed had a dry vagina.
Medeiros also interviewed mother.
Mother reported that prior to the agency's involvement, she was aware
father was viewing pornography on the computer and felt this had caused father
to molest K. Mother again voiced
concerns about the book father had written concerning various state pornography
laws and the story he was writing on his computer involving a man who, while
camping, came upon a "'very young'" girl dressing in a tent. Mother reported she was upset that father had
described in his story the young girl's breasts as "'tilting upward'"
because, at the time, she and father had young daughters who also were getting
dressed and undressed in tents.
Mother metaphorically described her relationship with father as being
similar to that of a drug addict and drugs.
Mother said if she spent time with father or "looked into his
eyes," she would not be able to stop herself from getting back into a
relationship with him. A few weeks after
this interview, mother's brother emailed Medeiros and reported that while he
was visiting mother she repeatedly said she was "'addicted to him [i.e.,
father]' and that he has always captivated her [i.e., mother] by his
eyes." She also stated she knew she
would "'go back to him when [she is] around him.'" Mother admitted to her brother that father
had a "problem" with pornography.
As a result of her investigation, mother's statements and her failure
to follow the safety plan, Medeiros recommended in the agency's October 16,
2012 jurisdiction/disposition report that mother needed "more time in
services to demonstrate that she can protect her children and recognize unsafe
individuals and/or unsafe situations."
Medeiros in the agency's December 5, 2012 addendum report stated that
mother was attending individual and group therapy sessions each week and that
mother's therapist indicated mother recently had been able to show improved
judgment, although mother still had codependency issues. Mother's therapist opined that it was
acceptable for the two youngest children, E. and Av., to be placed in mother's
care, which the agency did in late November 2012. The agency continued to recommend that the
court make a true jurisdictional finding as to each of the eight children and
that the court remove K., A., Jr., T., J., C. and Jo. from their parents'
custody.
B. Contested Adjudication/Disposition Hearing
Before trial, the agency moved to dismiss the section 300 petitions on
behalf of A., Jr., and J. because the agency deemed neither child was at
substantial risk of abuse given their age and gender. The court granted the motion, and none of the
parties in this proceeding have challenged that order. The court received into evidence the
following agency reports: the September 10, 2012 detention report; the October
16, 2012 jurisdiction/disposition report; and the October 16, October 31, and
December 5, 2012 addendum reports. The
court also received into evidence the "delivered service logs,"
prepared by Weathersby, regarding all contacts, services and visits between
June 1, 2012 and December 6, 2012.
1. Testimony of K.
At K.'s request, she testified outside the
presence of mother and father. She
testified that she had been interviewed multiple times throughout the
investigation; that she told the truth to the best of her recollection during
each interview; and that at no time did mother tell her what to say to
investigating authorities.
K.'s testimony was consistent with her statements to Weathersby and
others described ante: that from the
time she was about five or six years old until she was 12, father digitally
penetrated her vagina with his finger.
K. stated that father did this to her more than 10 times; that she could
not be sure if he did this more than 100 times; that it made her feel
"very disgusted"; that several times she told father to stop and if
he wanted to touch someone in that "sort of place, it should be with his
wife"; and that she never knew when father would molest her, which made
her constantly worried and scared. K.
said father told her he put his finger in her vagina to make her "tummy"
feel better, even when K. did not complain of stomach pain.
K. testified when she was about 12 years old she told father again to
stop penetrating her vagina; he became "very emotional," said K. was
his "tickle buddy" and "made [her] feel bad for telling him to
stop." She stated that it was
"very hard" telling father to stop; that she worried he would not
love her the same; and that she felt like father's wife. K. said she would pray mother would catch
father sexually abusing her so that the abuse would stop.
K. testified one time father made her touch his penis and put his
penis near her vagina. K. could not
remember exact details when this occurred but recalled it happened in the
"nighttime."
K. testified she did not tell mother about the sexual abuse when it
was occurring because father wanted it to be their "little secret,"
and K. did not want to be a "secret breaker." She also was afraid to tell. However, K. finally told mother about the
sexual abuse by father because K. feared that father might sexually abuse her
younger sister C. K. saw C. on more than
one occasion straddling father while doing sit-ups on his lap, just like K. had
done with father when she was young. In
addition, father was spending more time with C. than with the other children
and was protective of her if another family member attempted to discipline
C. K. noted these behaviors by father
were consistent with the behaviors he had exhibited toward her when she was
young.
2. Testimony of T.
Like her sister, T. testified outside the presence of mother and
father by request. T. testified that she
was interviewed by multiple people throughout the investigation; that she told
the truth to the best of her recollection in each interview; and that at no
time did anyone, including mother, tell her what to say to investigating
authorities.
T. testified that she and K. slept in a bunk bed when they were
younger, with K. sleeping on the top bunk.
T. recalled father often came into their room at night, put his arms on
the side of the bed in such a way that they were extended straight in front of
him and touched K., although T. did not see father touch K.'s "private
parts." T. said she felt father
liked K. more than her because he would touch K. and would not touch T.
T. testified father put his hands down her pants. T. could not recall details about this
touching because she was sleeping but did say when she awakened, "his
hands were in my pants." T. stated
that there were other times when father would squeeze the top of her knee, arm
and stomach and that this touching made her uncomfortable. When T. told father to stop this touching, he
instead would "do it more."
T. testified father treated K. differently than the other
children. Father let K. "get by
with stuff more" than her siblings, and father purchased more items for K.
than he did for the rest of his children, including T., which made T. feel
bad. T. stated father treated K. like
she was the "mom of the family."
T. noticed in the last year father was beginning to treat her younger
sister C. differently than her siblings, including not disciplining C. as much
as the other children.
3. Testimony of A., Jr.
The stipulated testimony for A., Jr., was that
he had neither been inappropriately touched by father nor had he seen father
inappropriately touch or "tickle" K. or his other siblings. A., Jr., did not think father "'play[ed]
favorites'" among the children. A.,
Jr., never saw pornography or inappropriate pictures in the family home.
4. Testimony of J.
The stipulated testimony for J. was that he had never been touched by
father in a way that made him feel uncomfortable or feel "icky." J. wanted to live with mother and father and
felt father treated him and his siblings equally. J. saw father tickle T. under her armpits but
was unsure whether he saw father tickle K.
5. Testimony of R.
R. testified she was 24 years old and the eldest child of mother and
father. R. stated that she did not see
any sexual abuse of K. or T. by father and that father had not sexually abused
her.
6. Testimony of S.
S. testified she was 22 years old and the adult daughter of mother and
father. S. stated she did not see
"anything" while living with the family that suggested K. was being
sexually abused. S. felt that father
treated K. with favoritism.
7. Testimony
of Mother
Mother testified she told Weathersby that
father viewed pornography but did not recall telling Weathersby she saw
"terrible porn" on father's computer.
Mother also did not recall telling Weathersby father accidently could
have looked at images of underage girls on his computer and denied she told
Weathersby "or anybody else" father "dabbled in child
pornography." Mother also said she
told Weathersby there would not be any pornography on father's computer because
he was "careful."
Mother testified K. had integrity, and mother did not believe K. was
making up the story she was sexually abused by father. Mother also stated she started to see
"some patterns" and "similarities" between the way father
was treating C. and how he had treated K. when she was younger, which caused
mother concern. After K. told her what
happened, mother stated she would not leave K., C. or Av. alone with father
"[b]ecause of the propensity of a future molestation."
Mother testified she confronted father at the campsite after K.
disclosed she was sexually abused by him.
Mother did not ask father whether it was true but rather said,
"'Your sin of pedophilia has been exposed.
[K.] told me everything.'"
Father responded, "tell me what happened," or words to that
effect, to which mother said, "'You tell me what happened. You were there.'" According to mother, father did not respond
then but later said all he could remember is he would "tickle" K.
because "she had tummy pains."
Mother also testified she was at a meeting with father and a church
pastor when father said, "I'm not a child molester, but I'm definitely not
sinless." Mother believed father
was "making it right between himself and God" and showed "some
repentance" for what he had done to K. when he said, "I'm definitely
not sinless."
8. Testimony
of Weathersby
Weathersby testified she worked for the agency
for more than 12 years. Weathersby
testified that as part of her investigation of this case she met with mother on
August 16, 2012 and, during that interview, she "distinctively
recalled" mother saying she had seen "child pornography on [father's]
computer and that it had concerned her."
Weathersby also testified that during this same interview mother told
Weathersby she had seen "some terrible porn" on father's computer and
that "he could have accidently looked at underage[] girls." Finally, Weathersby confirmed that during
their interview, mother said father would take C. to the hot tub "almost
nightly."
9. Testimony of Medeiros
Medeiros testified she worked for the agency for 12 years. Medeiros opined the court declare K., T., C.,
Jo., E. and Av. dependents and remove K., T., C. and Jo. from their parents'
custody. Medeiros recommended that K.,
T., C. and Jo. be removed from the custody of mother because: mother in the
past had been unable to stand up to father; if mother was responsible for all
the children, she would resume a relationship with father to assist her in
caring for the children if and when he was released from jail; and mother
needed more time in services to demonstrate stability and help in her
decisionmaking. Medeiros recommended
short, unsupervised daytime visits for mother.
Specifically, Medeiros testified T. was at substantial risk of sexual
abuse by father as a result of the following factors: father sexually assaulted
K.; T. was a 13-year-old girl and was just a year older than K. when father
inappropriately touched K.; father put his hands down T.'s pants while she was
sleeping in the campsite; and father's unwanted touching of T. and his refusal
to respect her boundaries, including when he touched her thigh and arm and
refused to stop the touching after T. repeatedly pushed his hand away.
Medeiros testified C. also was at substantial risk of sexual abuse by
father based on the following factors: C.'s age and gender; father appeared to
favor C.; and father engaged in certain "grooming" behaviors with C.
that in the past he had done with K., including having the child do sit-ups on
his lap, isolating C. from other family members and treating her differently
than he treated her siblings by disciplining C. less and buying her more
things.
Regarding E., Medeiros testified E. was at substantial risk of sexual
abuse based on her age and gender.
Medeiros noted E. was "very vulnerable," as E. was nearing the
age when father started sexually abusing K.
Medeiros opined that Av., who was less than two years old, was at
substantial risk of sexual abuse because of her age and gender and because she
would not be able to verbalize if there was such an occurrence.
Finally, as to Jo., Medeiros stated he too was at substantial risk of
sexual abuse because he was six years old and because it appeared father's
deviant behavior was escalating. Unlike
his older brothers, A., Jr. and J., Medeiros opined that Jo. was still too young
to stand up to his parents if abuse occurred because, at six years old, Jo.
still saw his parents as "authority figures."
Other factors Medeiros considered when she opined these children were
at risk were the father's refusal to stop unwanted touching; the social
isolation of the children by mother and father, including years of
homeschooling the children; the secret-keeping; and father's interest in
pornography, including his book that dealt with child pornography laws.
10. Juvenile Court's Ruling
The court sustained the section 300, subdivision (d) petition as to K.
and the section 300, subdivision (j) petitions as to T., C., Jo., E. and
Av. On the issue of disposition, the
court declared all six children dependents but removed K., T., C. and Jo. from
the physical custody of mother and father.
K. and T. were placed in the approved home of a nonrelated extended
family member, and C. and Jo. were placed in the approved home of a relative. As noted ante,
DISCUSSION
A.
"'In reviewing a challenge to the
sufficiency of the evidence supporting the jurisdictional findings and
disposition, we determine if substantial evidence, contradicted or
uncontradicted, supports them. "In
making this determination, we draw all reasonable inferences from the evidence
to support the findings and orders of the dependency court; we review the
record in the light most favorable to the court's determinations; and we note
that issues of fact and credibility are the province of the trial
court." [Citation.] "We do not reweigh the evidence or
exercise independent judgment, but
merely determine if there are sufficient facts to support the findings of the
trial court. [Citations.] '"[T]he [appellate] court must review
the whole record in the light most favorable to the judgment below to determine
whether it discloses substantial evidence
. . . such that a reasonable trier of fact could find [that the order
is appropriate]."'
[Citation.]"
[Citation.]'
[Citation.]" (In re I.J.
(2013) 56 Cal.4th 766, 773.)
Moreover, "[e]vidence from a single witness, even a party, can be
sufficient to support the trial court's findings. [Citations.]" (In re Alexis E. (2009) 171
Cal.App.4th 438, 451.) The agency has
the burden of proving by a preponderance of the evidence that the children are
dependents of the court under section 300.
(§ 355, subd. (a); see also In re
Matthew S. (1996) 41 Cal.App.4th 1311, 1318.) Once met, the "appellant has the burden
of showing there is no evidence of a sufficiently substantial nature to support
the findings or order." (
133.)
Abuse—Subdivision (j) of Section 300
1. Guiding Principles
Section 300, subdivision (d)
invokes the jurisdiction of the juvenile court and permits the court to declare
a child a dependent of the
court when "[t]he child has been sexually abused, or there is a
substantial risk that the child will be sexually abused, as defined in Section
11165.1 of the Penal Code, by his or her
parent . . . ."
Here, neither mother nor father challenges the finding of the juvenile
court that father sexually abused K.
Instead, they (separately) challenge the true jurisdictional finding
on the section 300, subdivision (j) petition only as to Jo.
was insufficient to establish that Jo., a six-year-old boy, was at substantial
risk of being sexually abused because each contends there is no evidence
whatsoever that father had sexually abused, or had any interest in engaging in
sexual activity with, his male children, including Jo.
Subdivision (j) of section 300 applies and gives the juvenile court
jurisdiction over a child when the "child's sibling has been abused or
neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a
substantial risk that the child will be abused or neglected, as defined in
those subdivisions."
Recently, our high court unanimously held that substantial evidence
supported the juvenile court's assertion of jurisdiction over the sons of the
defendant father under section 300, subdivision (j) despite the lack of
evidence the defendant sexually abused them or they witnessed any of the sexual
abuse by the defendant against their sibling sister. (In re I.J., supra, 56 Cal.4th at p. 770.) In reaching its decision, the court noted
that "section 300 does not require that a child actually be abused
juvenile court can assume jurisdiction.
The subdivisions at issue here require only a 'substantial risk' that
the child will be abused or neglected.
The legislatively declared purpose of these provisions 'is to provide
maximum safety and protection for children who are currently being physically,
sexually, or emotionally abused, being neglected, or being exploited, and to
ensure the safety, protection, and physical and emotional well-being of
children who are at risk of that harm.' (§ 300.2, italics
added.) 'The court need not wait until a
child is seriously abused or injured to assume jurisdiction and take the steps
necessary to protect the child.'
[Citation.]" (
case, the focus of the court in In re
I.J. was on subdivision (j) of section 300.
The court noted this provision "applies if (1) the child's sibling
has been abused or neglected as defined in specified other subdivisions and (2)
there is a substantial risk that the child will be abused or neglected as defined
in those subdivisions. (§ 300,
subd. (j).) Here, father sexually abused
the boys' sister as defined in subdivision (d).
So the first requirement is met.
At issue is the second requirement.
'[S]ubdivision (j) was intended to expand the grounds for the exercise
of jurisdiction as to children whose sibling has been abused or neglected as
defined in section 300, subdivision (a), (b), (d), (e), or
(i). . . .'
[Citation.]" (
"Unlike the other subdivisions, subdivision
(j) includes a list of factors for the court to consider: 'The court shall consider the circumstances
surrounding the abuse or neglect of the sibling, the age and gender of each
child, the nature of the abuse or neglect of the sibling, the mental condition
of the parent or guardian, and any other factors the court considers probative
in determining whether there is a substantial risk to the child.' (§ 300, subd. (j).) 'The "nature of the abuse or neglect of
the sibling" is only one of many factors that the court is to consider in
assessing whether the child is at risk of abuse or neglect in the family
home. Subdivision
factors that might not be determinative if the court were adjudicating a petition
filed directly under one of those subdivisions.
[¶] The broad language of
subdivision (j) clearly indicates that the trial court is to consider the
totality of the circumstances of the child and his or her sibling in
determining whether the child is at substantial risk of harm, within the
meaning of any of the subdivisions enumerated in subdivision (j). The provision
accords the trial court greater latitude to exercise jurisdiction as to a child
whose sibling has been found to have been abused than the court would have in
the absence of that circumstance.'
[Citation.]" (
there was a split of authority regarding whether the sexual abuse of a female
child, standing alone, was sufficient to demonstrate a substantial risk of
abuse to a male sibling. (
"Some of these cases are distinguishable from this one and each
other, in that some of the cases upholding the jurisdictional finding contained
additional evidence that is lacking here.
But to some extent, the cases simply disagree with each other. The majority [of the Court of Appeal] below
agreed with the cases finding the evidence sufficient, while the dissent agreed
with the cases finding the evidence insufficient.
"Two typical cases upholding the jurisdictional finding are In
re P.A. [(2006)] 144
Cal.App.4th 1339 and In re Karen R. [(2001)] 95 Cal.App.4th 84.
The Karen R. court said that 'a father who has committed two
incidents of forcible incestuous rape of his minor daughter reasonably can be
said to be so sexually aberrant that both male and female siblings of the
victim are at substantial risk of sexual abuse . . . . Although the danger of sexual abuse of a female
sibling in such a situation may be greater than the danger of sexual abuse of a
male sibling, the danger of sexual abuse to the male sibling is nonetheless
still substantial. Given the facts of
this case, the juvenile court reasonably could conclude every minor in the
home, regardless of gender, was in substantial danger of sexual abuse by
father.' (In re Karen R., supra, at pp. 90–91.)
"In
P.A., the juvenile court
sustained an allegation that the father had sexually abused his daughter by
touching her vagina under her clothes and on
pp. 1341, 1343.) There was no evidence
the father had inappropriately touched or otherwise sexually abused his sons,
and it appeared the boys were unaware of the abuse.
1345.) Nevertheless, relying in part on In
re Karen R., supra,
95 Cal.App.4th 84, the court upheld the jurisdictional finding as to the
sons. It acknowledged that the abuse in
its case was 'less shocking than the abuse in Karen R.,' but it was 'convinced that where,
as here, a child has been sexually abused, any younger sibling who is
approaching the age at which the child was abused, may be found to be at risk
of sexual abuse. As we intimated in Karen
R., aberrant sexual
behavior by a parent places the victim's siblings who remain in the home at
risk of aberrant sexual behavior.' (In
re P.A., supra, at
p. 1347.)
"The
P.A. court found its conclusion 'consistent with section 355.1,
subdivision (d), which provides in pertinent part that: "(d) Where the court finds that either a
parent, a guardian, or any other person who resides with . . . a
minor who is currently the subject of the petition filed under Section 300
. . . (3) has been found in a prior dependency hearing
. . . to have committed an act of sexual abuse, . . .
that finding shall be prima facie evidence in any proceeding that the subject
minor is a person described by subdivision (a), (b), (c), or (d) of Section 300
and is at substantial risk of abuse or neglect.
The prima facie evidence constitutes a presumption affecting the burden
of producing evidence." [¶] Although section 355.1, subdivision (d), was
not triggered here because there was no prior dependency proceeding at the time
of the jurisdictional hearing, it nonetheless evinces a legislative
determination that siblings of sexually abused children are at substantial risk
of harm and are entitled to protection by the juvenile courts.' (In re P.A., supra, 144 Cal.App.4th at p. 1347.)
"A
relatively early case overturning the jurisdictional finding is In re
Rubisela E. [2000] 85
Cal.App.4th 177. The Rubisela E.
court did 'not discount the real possibility that brothers of molested sisters
can be molested [citation] or in other ways harmed by the fact of the
molestation within the family. Brothers
can be harmed by the knowledge that a parent has so abused the trust of their
sister. They can even be harmed by the
denial of the perpetrator, the spouse's acquiescence in the denial, or their
parents' efforts to embrace them in a web of denial.' (Id. at p. 198.) But, the court found, 'in the case at bench,
while such a showing is possible, there has been no demonstration by the
department that "there is a substantial risk [to the brothers] that [they]
will be abused or neglected, as defined in . . . [the applicable]
subdivisions" . . . .'
(Id. at p. 199.)
"Relying partly on In re Rubisela E., supra, 85 Cal.App.4th 177,
the Maria R. court 'disagree[d] with prior cases to the extent that they
have held, either explicitly or
implicitly, that a parent's sexual abuse of a daughter, either alone or in
combination with a factor or factors that have no established correlation with
sexual abuse, is sufficient to establish that the parent's son is at risk of
sexual abuse by that parent . . . .' ([In re]
Maria R. [2010] 185
Cal.App.4th [48,] 63.) It agreed with Rubisela
E. 'that the brothers of molested girls may be harmed by the fact of
molestation occurring in the family,' but it did not 'agree with prior cases to
the extent that they have held or implied that the risk that the brothers face
may—in the absence of evidence demonstrating that the perpetrator of the abuse
may have an interest in sexually
abusing male children—be deemed to be one of "sexual abuse" within
the meaning of subdivision (d). . . . [T]he phrase "sexual abuse" for
purposes of section 300 is defined by reference to the offenses enumerated in
Penal Code section 11165.1, whether the allegation of sexual abuse is filed
under subdivision (d) or (j).
[Citation.] Penal Code section
11165.1 refers to specific sex acts committed by the perpetrator on a victim
. . . and does not include in its enumerated offenses the
collateral damage on a child that might result from the family's or child's
reaction to a sexual assault on the child's sibling.' (Maria R., supra, at pp. 67–68.)
"The Maria R. court noted that '[n]one of the courts that
have held or impliedly concluded that a child, regardless of gender, whose
sibling was sexually abused, may be
to be at risk of sexual abuse under subdivision (d), either directly or
under subdivision (j) [of section 300], has cited any scientific authority or
empirical evidence to support the conclusion that a person who sexually abuses
a female child is likely to sexually abuse a male child. [(Citing In re P.A., supra, 144 Cal.App.4th 1339,
and In re Andy G. [2010] 183
Cal.App.4th 1405.)] In the absence of
evidence demonstrating that a perpetrator of sexual abuse of a female child is
in fact likely to sexually abuse a male child, we are not persuaded that the
rule of general applicability enunciated in P.A., and repeated by the Andy G. court, is grounded in
fact. For this reason, we decline to
adopt the reasoning of P.A. and Andy G.' (Maria R., supra, 185 Cal.App.4th at p.
68.) The court concluded that '[s]ince
there is no evidence in the record that would tend to support a finding that
[the father] has an interest in engaging in sexual activity with a male child,
we cannot . . . conclude that [the father's] sexual abuse of his daughters—as
aberrant as it is—establishes that [the son] is at substantial risk of sexual
abuse within the meaning of subdivision (j), as defined in subdivision (d)
and Penal Code section 11165. 1.' (Ibid.)
agree with the majority below that the evidence in this case was sufficient to
support the juvenile court's dependency finding. Among the factors cited in subdivision (j)
for the court to consider are the circumstances surrounding, and the nature of,
father's sexual abuse of his daughter.
By citing these factors, subdivision (j) implies that the more egregious
the abuse, the more appropriate for the juvenile court to assume jurisdiction
over the siblings. (§ 300, subd.
(j).) 'Some risks may be substantial
even if they carry a low degree of probability because the magnitude of the
harm is potentially great. . . .
[¶] . . . [¶]
. . . Conversely, a relatively high probability that a very minor
harm will occur probably does not involve a "substantial" risk. Thus, in order to determine whether a risk is
substantial, the court must consider both the likelihood that harm will occur
and the magnitude of potential harm . . . .' [Citation.]
In other words, the more severe the type of sibling abuse, the lower the
required probability of the child's experiencing such abuse to conclude the
child is at a substantial risk of abuse or neglect under section 300. If the sibling abuse is relatively minor,
insubstantial a risk the child will be similarly abused; but as the abuse becomes
more serious, it becomes more necessary to protect the child from even a
relatively low probability of that abuse.
"The majority
below accurately described father's behavior as 'aberrant in the extreme: he
sexually abused his own daughter "by fondling the child's vagina and
digitally penetrating the child's vagina and forcefully raped the child by
placing the father's penis in the child's vagina."' Also relevant to the totality of the
circumstances surrounding the sibling abuse is the violation of trust shown by
sexually abusing one child while the other children were living in the same
home and could easily have learned of or even interrupted the abuse. '[S]exual or other serious physical abuse of
a child by an adult constitutes a fundamental betrayal of the appropriate
relationship between the generations. . . .
When a parent abuses his or her own child, . . . the
parent also abandons and contravenes the parental role. Such misparenting is among the specific
compelling circumstances which may justify state intervention, including an
interruption of parental custody. (See §
300, subds. (d), (e), (j).)' (In re
Kieshia E. (1993) 6 Cal.4th 68, 76–77.)
The serious and prolonged nature of father's sexual abuse of his
daughter under these circumstances supports the juvenile court's
abuse was substantial as to all the children.
"The Maria R. court criticized cases like In re P.A., supra, 144 Cal.App.4th 1339,
for not citing scientific authority or empirical evidence to support the conclusion
that a father who abuses his daughter is likely to abuse his son. (Maria R., supra, 185 Cal.App.4th at p. 68.) But nothing in the statutes suggests a
legislative intent to require a court to consult scientific
it makes the 'substantial risk' determination.
The specific factors the Legislature stated in section 300, subdivision
(j) do not include such evidence.
Rather, after considering the nature and severity of the abuse and the
other specified factors, the juvenile court is supposed to use its best
judgment to determine whether or not the particular substantial risk
exists. As the majority below noted, 'It
is of course impossible to say what any particular sexual predator—and here a
predator who has raped his own daughter—is likely to do in the future in any
particular instance. But in our view
that very uncertainty makes it virtually incumbent upon the juvenile court to
take jurisdiction over the siblings . . . .'
"Another statute that does not directly apply here supports the
conclusion that a court need not consult scientific authority before it finds
the requisite substantial risk when a parent has sexually abused a
sibling. Section 355.1, subdivision (d),
provides that a prior finding of sexual abuse (of anyone, not just a sibling)
is prima facie evidence that the child who is the subject of the dependency
hearing is subject to the court's jurisdiction under section 300. When it enacted subdivision (d) of section
355.1, the Legislature found 'that children of the State of California are
placed at risk when permitted contact with a parent or caretaker who has
committed a sex crime. Further, the
Legislature finds that children subject to juvenile court dependency
jurisdiction based on allegations of molestation are in need of protection from
those persons.' [Citation.] Nothing in this subdivision suggests it is
limited to sexual abuse of a person of the same gender as the child before the
court.
argues that section 355.1 does not apply here because there was no finding in a
prior proceeding that he committed sexual abuse. But neither the P.A. court, nor the
Court of Appeal here, nor the Department contends it does apply. Rather, section 355.1 is relevant because it
evinces a legislative intent that sexual abuse of someone else, without more,
at least supports a dependency finding.
(See In re P.A.,
supra, 144 Cal.App.4th at p. 1347.)
"Citing empirical studies, father argues that when a father
sexually abuses a daughter, his sons are at significantly lower risk of sexual
abuse than are his other daughters.
Amicus curiae California State Association of Counties challenges
father's statistics and argues that empirical studies show the risk to boys
when a sister is abused is greater than father argues. We need not examine these studies in
detail. For present purposes, we may
assume that father's other daughter is at greater risk of sexual abuse than are
his sons. But
insubstantial that the juvenile court may not take steps to protect the sons
from that risk. 'Although the danger of
sexual abuse of a female sibling in such a situation may be greater than the
danger of sexual abuse of a male sibling, the danger of sexual abuse to the
male sibling is nonetheless still substantial.'
(In re Karen R.,
supra, 95 Cal.App.4th at p. 91.)
The juvenile court need not compare relative risks to assume
jurisdiction over all the children of a sexual abuser, especially when the
abuse was as severe and prolonged as here.
"The juvenile court's assumption of jurisdiction under section
300 does not itself mean father will lose all parental rights. 'A dependency adjudication is a preliminary
step that allows the juvenile court, within specified limits, to assert
supervision over the endangered child's care.
But it is merely a first step, and the system includes many subsequent
safeguards to ensure that parental rights and authority will be restricted only
to the extent necessary for the child's safety and welfare.' (
(2012) 54 Cal.4th 610, 617.) All we are
holding at this point is that when a father severely sexually abuses his own
child, the court may assume jurisdiction over, and take steps to protect, the
child's siblings.
"We agree with the
Court of Appeal's conclusion. 'The
juvenile court is mandated to focus on "ensur[ing] the safety, protection,
and physical and emotional well-being of children who are at risk" of
physical, sexual or emotional abuse.
(§ 300.2.) That is what the
court did here.' As we noted earlier,
the juvenile court found, 'by clear and convincing
evidence, . . . that there is a substantial danger to the
children, if returned to the home, to the physical health, safety, protection,
physical, emotional well-being of the children, and there are no reasonable
means by which the children's physical health can be protected without removing
the children from the father's custody in this case.' In upholding the assertion of jurisdiction in
this case, we are not holding that the juvenile court is compelled, as a matter
of law, to assume jurisdiction over all the children whenever one child is
sexually abused. We merely hold the
evidence in this case supports the juvenile court's assertion of
jurisdiction. [Citation.]" (In re
I.J., supra, 56 Cal.4th at pp.
774-780, fn omitted.)
2. Analysis
Relying on the holding and reasoning of In re I.J., as we must, we conclude mother and father have each
failed to show there is no substantial evidence in the record to support the
true jurisdictional finding of the juvenile court that Jo. was at substantial
risk of abuse or neglect as provided in subdivision (j) of section 300, based
on the undisputed finding his sibling K. was sexually abused as provided in
subdivision (d) of section 300.
The record shows father's behavior towards his daughter K. was
"'aberrant in the extreme.'" (
Father repeatedly sexually abused K. when she was about five or six
years old until she was 12 by licking his finger (as he demonstrated for
Medeiros) and inserting it into K.'s vagina, where he would move it in and out
of her. K. estimated this sexual abuse
occurred about twice a week.
Father's sexual abuse of K. often occurred in the presence of her
siblings. K. testified father sexually
abused her while she lay in the top bunk of a bunk bed she shared with her
younger sister, T., who slept below her on the bottom bunk. T. confirmed father often came into the
girls' room and "tickled" K., while refusing to "tickle"
T., despite K.'s pleas for him to stop.
The record also shows father sexually abused K. "the whole ride
home" as she sat in the front seat of a car driven by father as her
siblings slept in the back seat. When
they arrived home, father put K.'s siblings to bed. Father then took K. to his bed, made her
touch his penis with her hand and then put his penis near K.'s vagina.
Father also repeatedly sexually abused K. when, as a child, she came
into her parents' bedroom in the middle of the night for comfort and
affection. On a few occasions, father
also sexually abused K. in the garage of the family home, where father had an
office.
Father told K. he was merely "tickling" her when he sexually
abused her by digitally penetrating her vagina.
He referred to K. as his "tickle buddy" and told her not to
tell anyone. When K. was diagnosed with
ovarian cysts at 12 years of age, father drew a picture of a vagina and
discussed how his "tickling" of K. allegedly caused endorphins to be
released to make her feel better.
The record shows father in February 2012 came into the room where K.
was resting after she had a root canal.
Father went behind K. and lay in a position K. described as
"weird" and mother described as "awkward," after mother and
T. unexpectedly entered the room.
Although K. did not tell mother then about father's sexual abuse, K.
prayed mother would come home and "catch" father sexually abusing her
so that it would stop.
Also relevant to the totality of the circumstances surrounding the
sibling abuse is the uncontroverted evidence that father was engaging in
similar behavior
| Description | Defendants and appellants M.P. (mother) and A.P., Sr., (father) each contend the evidence was insufficient to support the jurisdictional finding of the juvenile court that their minor son, Jo., was at substantial risk of being sexually abused as provided in Welfare and Institutions Code[1] section 300, subdivision (j) based on the undisputed finding that father repeatedly, over the course of years, sexually molested Jo.'s older sister, K. Father separately contends there was insufficient evidence to support the allegation in Jo.'s section 300 petition that father "dabbled in child pornography." Finally, mother alone contends the record is devoid of clear and convincing evidence to support the removal of K., T., C. and Jo. from her custody under section 361, subdivision (c)(4). As we explain, we conclude there is substantial evidence in the record to support the true finding under section 300, subdivision (j) that Jo. was at substantial risk of being sexually abused. We also conclude there is sufficient evidence in the record to support the finding that father "dabbled in child pornography." Finally, we conclude there is clear and convincing evidence in the record to support the findings and order based thereon removing K., T., C. and Jo. from mother's custody under section 361, subdivision (c)(4). |
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